Articles Posted inContempt for Enforcement

You have a final decree of divorce and you were either ordered to surrender a certain asset to your ex-spouse and you have not or you are the ex-spouse who is the recipient of the asset and have not received it yet. Regardless of which situation you are in, one can be pretty certain that an enforcement action is in your near future. The question becomes what type of relief can be sought on this type of case. This question is answered clearly as a big “no” in In re Cherilyn Ann Kinney, Relator by the Fifth District Court of Appeals in Dallas.

In some suits for enforcement (most commonly in suits to enforce child support), one means of relief sought is jail time–confinement of up to 60 days in county jail to be exact. However, in suits for enforcement of property division where one spouse was ordered a certain amount of money in the decree for a debt, lien, retirement division, etc. then jail time is not appropriate. In this particular case, the wife was awarded one of the homes and to compensate the husband he was awarded$40,000.00 secured by an owelty lien on the residence awarded to wife which the wife had to pay within six months of signing the decree. Needless to say, she did not pay the $40,000.00 within the time ordered and so her ex-husband filed an enforcement to make her do so. Unfortunately, they asked for jail time and the trial judge did just that and the wife was arrested on the spot and placed in the county jail.

On appeal, the Court of Appeals held that the “Texas Constitution provides, ‘No person shall ever be imprisoned for a debt’.” Tex. Const. art. 1, §18. In fact, the Texas Family Code is specific as to what property divisions are enforceable by contempt and that contempt does not mean imprisonment. Specifically, Texas Family Code Section 9.012(b) states “A court may not, enforce by contempt an award in a decree of divorce or annulment of a sum of money payable in a lump sum or in future installments payments in the nature of debt, except for (1) a sum of money in existence at the time the decree was rendered; or (2) a matured right to future payments. Therefore, the Court of Appeals did a legal analysis and concluded that the only way to determine if contempt is an option in an enforcement action, the decree must be specific enough—“the divorce decree must indicate the funds existed at the time the decree was rendered or specify particular community funds from which the amount is to be paid.”